Source: New Zealand Government
[Speech delivered in the Oxford Union debate in the affirmative of the proposition ‘This House Believes That the Courts Now Undermine Democracy’. NB the speech content is for the purposes of contesting the debate and is not an official statement of Government policy.]
Good evening.
This is a crucial debate because we live in testing times. Trust in core democratic institutions is in sharp decline across western democracies. The mystique that once shrouded long-standing institutions such as presidencies, prime ministerships, legislatures as well as the courts has lifted, leaving them diminished in the eyes of those they serve, the people.
The British seem to have taken this lessening of political respect to heart of late, with some serious Prime Ministerial churn in the last 10 years, proof positive that if at first you don’t succeed, then try, try, try, try, try and try again.
But before falling into despair it pays to remember American historian Daniel Boorstin’s reminder, ‘while democracy can appear messy on the surface, other forms of government are messy underneath’.
So as you contemplate our arguments tonight, remember that none of you will get thrown out of a window for challenging orthodoxy, no-one will be sent to a gulag for their dissent, and none will lose their head.
Judicial Overreach
Ladies and gentlemen, the world over, and throughout history, we have seen examples of judicial overreach, where judges, however well meaning, try to expand legal concepts that are not fully grounded in legislation.
In New Zealand, we have seen this happen across a range of issues – including how our country’s resources might be managed; what one of our country’s constitutional documents, a three-clause Treaty of Waitangi means; and how different cultural practices of New Zealand’s first settlers, the Māori, might be reflected in law.
In the US, we have seen US Supreme Court judges be characterised, by both sides of politics, as “politicians in robes”. Perceptions of judicial obstructionism led to President Franklin Delano Roosevelt trying to stack their Supreme Court.
In more recent times, that same court has been beset by accusations of partisanship; and more generally the accusation of “lawfare” – or the fear that the courts are used to undermine democracy by weaponising legal processes against political opponents. Now, whatever your preference or view might be, President Trump has faced an extraordinary number of court cases, from those unhappy with the democratic decisions of the American people.
In the UK, there are examples following the British people’s choice to leave the European Union of resistance from judicial actors – whether individual judges or those seeking to weaponise the courts to block the will of the British people.
All of these examples have one thing in common. They show that while democracy is founded on the idea that the people through their elected representatives have the final say in how our countries should operate, too often this popular will has faced baseless challenge.
Making these observations is not an attack judges generally. It is simply to stand up for the idea that, in a democracy, Parliament is the highest court in the land.
As a trained and practised lawyer, and a long-standing lawmaker, we have the utmost respect for the legal system. But we should never be in a situation where the court system is substituting its views for those of Parliament. You see, if that is right, what power have you, the people, then got?
In the canvas of recorded human history, this fragile flower called democracy has rarely bloomed. Over these thousands of years, our job is to nourish that democratic soil, so that the flower of democracy continues to bloom for your children and grandchildren and generations of children yet unborn.
It’s your inheritance, and as trustees surely your duty is to pass it on to the next generation.
Democracy
Winston Churchill put it best when he said that ‘democracy is the worst form of government except for all those other forms that have been tried from time to time’.
New Zealand stands with the United Kingdom as two unique, longstanding democracies. We share unwritten constitutions and we are two of the five oldest continuous democracies in the world, so we’ve got something right.
Across our histories we have sought to achieve an equitable balance, whereby the ultimate source of political power, the people, that’s you, have – despite periodic upheavals inflicted upon them, or by them – accepted the legitimacy of our political systems and the leaders and institutions that support them.
All true leadership is about reciprocal loyalty – owed in both directions, both upwards and also down. Even in Caesar’s Rome every new leader began their road to leadership with an accompanying servant alongside Caesar’s chariot intoning, ‘Remember, you are only a man’.
For make no mistake, it is the people themselves who are the ultimate source of power in a democracy.
The State & the Wild Card of Leadership in Democracies
In Rapheal’s ‘School of Athens’ the Greek philosopher Aristotle is depicted with his palms pointing downwards, to the earth, to the natural sciences and empiricism.
From his study of 158 Greek City-State constitutions, Aristotle formed his ideas of a state, one built upon the foundation of passionless reason. He said, ‘But he who first constructed a State was the greatest of benefactors; for just as man when brought to perfection is the noblest of living things, so when cut off from law and justice he is the most degraded of all’.
Aristotle believed his leaders teaching the spirit of the constitution fused moral aspiration with politics. The moral obligation of his leaders was then to make politics work.
However, unlike his teacher Plato’s elitist preference for virtuous philosopher kings, Aristotle believed the skilful, the practically wise, and the old – all synonymous, you’ll agree – could ascend to being statesmen.
Aristotle’s statesmen needed to show prudence in balancing competing interests within a constitution. And whereas only statesmen exhibited prudence and individual citizens did not, and whereas individuals may be quite ordinary in themselves, when people came together to decide public issues, they often possessed, or surpassed, the quality of the best statesmen. Many minds not only make light work – they make democracy work.
Separation of Powers
The contours of state power and the systems of government they produced evolved over millennia, traversing the Greeks, the Roman Republics, and your own Civil War.
Political philosophers like Locke and Montesquieu provided the intellectual basis of these systems. The doctrine of the separation of powers, between executive, legislative and judicial branches of government has provided a balance of forces that has protected the liberty of our citizens against the arbitrary use of power, or, put simply, acted against the tyranny of a minority.
How is that liberty best protected? Judge Learned Hand put it best when he said, ‘The spirit of liberty is the spirit which is not too sure that it’s right; which seeks to understand the minds of other men and women; and that weighs their interests alongside its own without bias’.
Separation of powers rejects infallibility, admits doubt, and seeks to understand and balance competing interests.
Judicial Independence in New Zealand
Friends, judicial independence has been a foundation stone underpinning the separation of powers, the rule of law and New Zealand-styled democracy. But judicial independence was not put there for them to star exercising the right of elected representatives.
The Magna Carta (1215), The Bill of Rights (1688) and the Act of Settlement (1701) formed essential parts of New Zealand’s constitutional inheritance, from which judicial independence slowly emerged after the Treaty of Waitangi was signed between Queen Victoria’s representatives and Māori tribes in 1840, and democratic government began 14 years later, in 1854.
However, we only became fully independent of the UK after the Supreme Court Act (2003) came into force, removing appeals to the Privy Council.
This was not without controversary. Some saw it as overdue that we stopped sending our dirty legal washing to London for the law lords to wash, and that it was time we did our own washing. Others, including some Māori, argued that it was only our finest legal clothes that were sent.
New Zealand’s judicial system has all the well-established hallmarks of judicial independence, entailing judges with security of tenure, the institutional independence of courts, and the financial security of judges. And judicial review is available to any citizen.
While trust in the judiciary remains comparatively high in New Zealand, we do, as we have said, have concerns about judicial overreach. A case in point: the Foreshore and Seabed Act (2004) introduced the requirement for Māori land claimants to have an unbroken relationship with the land. That is, they couldn’t have abandoned their occupation of that land for that right to that same land to remain uninterrupted.
Recent courts weakened that test by introducing a new concept, ‘Tikanga’, an ambiguous concept of Māori lore because ‘Tikanga’ between tribes is different – from tribe-to-tribe-to-tribe. This judicial activism was never the intention of legislators, nor made mention of, and we have been forced to legislate this week to restore the original intent.
Friends, how many court decisions have you observed where the judicial penalty for the offence is at the bottom, not the top end, of the law-makers’ intent.
Closing Remarks
Friends, to those of you who chose the subject of tonight’s debate, our respect and gratitude because your concern is right.
Why, because after Abraham Lincoln consecrated the dead at Gettysburg, he turned to their cause – freedom, and resolved ‘that government of the people, by the people, for the people, should not perish from this earth’.
It is only elected politicians who can say they are there ‘by the people’. We also believe prudential leadership is required to ensure politics and the direction of the law stays close to its ultimate source of power, the people.
And despite its failings, parliament must strive to be the voice of the people.
The New Zealand judge’s oath pledges to serve their Head of State ‘according to the law’, and ends with the pledge to ‘do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will’.
If that is all they do, honour that pledge, they will retain their independence and good standing. It’s their creed and one worth preserving.
But it is the law that they are asked to uphold and it is the people through their parliament that make those laws. It is this very essence of democracy that is under assault right now, and we who believe in the people’s voice, believe in democracy, must defend it.